M v Dental Board of Queensland - [2012] QCAT 222

CITATION:

M v Dental Board of Queensland [2012] QCAT 222

PARTIES:	M (Applicant)
v
Dental Board of Queensland (Respondent)

APPLICATION NUMBER:

ADL033-10

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

C Endicott, Senior Member

DELIVERED ON:

1 March 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

The application by the respondent to bring an early end to the proceedings is refused.

CATCHWORDS:

ANTI-DISCRIMINATION – where party sought an early end to the proceeding – where finding already made of no indirect discrimination – whether issue estoppel prevents claim based in direct discrimination – where discretion not exercised to end proceedings before hearing

Queensland Civil and Administrative Tribunal Act 2009, s 47

M v Dental Board of Queensland [2011] QCAT 373

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

M, Applicant, represented by bm law, solicitors

RESPONDENT:

Dental Board of Queensland, Respondent, represented by DLA Phillips Fox

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

M is a dentist who is HIV positive. The Dental Board of Queensland has directed that M not undertake exposure prone dental procedures in accordance with one of its policies. M contends that the application of that policy to him contravenes the Anti-Discrimination Act 1991 and as a result constitutes unlawful discrimination.
The tribunal has already determined that the conduct of the Dental Board in relying on its policy in this case did not constitute unlawful indirect discrimination.[1] The issue is still to be determined as to whether the conduct of the Dental Board constituted unlawful direct discrimination.
[1] M v Dental Board of Queensland [2011] QCAT 373.
The Dental Board applied to the tribunal to exercise its discretion to bring an early end to the complaint. In making that application the Dental Board relied on section 47 of the QCAT Act which gives power to QCAT to dismiss a proceeding before hearing. It was alleged that the complaint by M is vexatious, misconceived, lacking in substance and an abuse of process.
The Dental Board conceded that it had discriminated against M but submitted that it was exempt from the consequences of that admission under sections 25, 107 and 108 of the Anti-Discrimination Act 1991 and section 7(1)(a) of the Dental Practitioners Registration Act 2001 and section 6(1)(a) of the Health Practitioners (Professional Standards) Act 1999. The Dental Board submitted that the current proceeding was impacted by issue estoppel arising from the decision of QCAT in M v Dental Board of Queensland. In particular it was submitted that the tribunal had already decided as between the parties that the restriction imposed by the Dental Board was reasonable and M was estopped from re-litigating the issue of reasonableness.
M opposed the application to bring an early end to the proceeding. He wants to adduce evidence to refute the reliance by the Dental Board on the statutory defences referred to in preceding paragraph. He submitted that it would be unfair to require him to address those defences by way of submissions in this dismissal application. M submitted that such a course would amount to a denial of procedural fairness for him as he has not had the opportunity to produce evidence, particularly expert evidence, relating to those defences.
It was submitted by M that to bring an early end to the proceeding in this case would be akin to giving summary judgement to the Dental Board. Case authorities were provided to support the submission that relief akin to summary judgement should not be given lightly and only if the party against whom the relief is sought has no real prospects of success or in the clearest of cases. It was submitted that the tribunal could not be satisfied on such factors.
It is correct that matters of defence to a compliant of unlawful discrimination can generally only be effectively considered and determined after analysing the evidence adduced by both parties. It would be an unusual case when a proper and fair consideration of the issues could take place solely on the written submissions of the parties. This case involves complex issues central to the statutory defences relied on by the Dental Board and in my view findings about those issues could not easily be reached without resort to the whole of the evidence to be adduced in the case.
However the application and impact of issue estoppel are unusual features of this case. I was not satisfied by the submissions made on behalf of the Dental Board that issue estoppel would inevitably as a matter of law prevent M from having a basis to resist the argument that the Dental Board had a valid defence to its conduct. The authorities in which estoppel arising from prior findings made in litigation has been sought to be applied reveal how complex that concept can be.[2]
[2]For example Blair v Curran (1939) 62 CLR 464, Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, Administration of Papua New Guinea v Daera Guba (1973) 139 CLR 353, Miller v University of New South Wales (2003) 132 FCR 147.
Mr Wensley had acknowledged in his reasons that any comments he had made about the complaint of direct discrimination were not part of his decision. It may be possible to argue that his findings on the defences under sections 25, 107 or 108 of the Anti-Discrimination Act 1991 were not part of his actual decision as he had already determined that there had been no indirect discrimination and accordingly he did not have to resort to consideration of the defences in order to conclude his decision.
In order to establish whether Mr Wensley’s decision can support an argument based on issue estoppel, the tribunal would require a full hearing of the evidence and arguments in the complaint of direct discrimination to consider whether any prior findings by Mr Wensley had also determined the ultimate facts which form the ingredients of the complaint of unlawful direct discrimination or of the defences which would excuse that conduct at law.
Both M and the Dental Board should have the opportunity to have their arguments about this complaint considered by the tribunal. It is a very serious step to dismiss a complaint of discrimination without allowing a hearing of that complaint to take place on its particular merits. The Dental Board has admitted that its conduct was discriminatory. It argues that its conduct was excused by law and accordingly was not unlawful. However those matters are both matters for determination by the tribunal. This case involves very grave matters with implications that could have wider consequences than those immediately affecting the parties. The implications have a bearing on how the instrumentalities of the State, including the respondent Board as well as this tribunal, conduct themselves when dealing with the rights of individuals.
The reasons for passing anti-discrimination legislation are set out in the preamble to the Anti-Discrimination Act 1991. The Parliament of Queensland expressly stated that everyone should have the right to equal protection and benefit of the law without discrimination, that the protection of fragile freedoms is best effected by legislation that reflects the aspirations and needs of contemporary society and that the quality of democratic life is improved by an educated community appreciative and respectful of the dignity and worth of everyone.
A determination by QCAT to bring an early end to a complaint will not in my view generally promote the protection of fragile freedoms inherent in a person’s human rights. When exercising discretion to dismiss a complaint before hearing the tribunal would need a clear case established under section 47 of the QCAT Act that there was no sustainable complaint and that the appropriate course in such a case would be to consider bringing an early end to the complaint without a hearing. I have not been convinced that this is such a case.
I am satisfied that M must be provided with the opportunity to have a just determination of his complaint which alleges a contravention of his human rights. I am also satisfied that the Dental Board must be provided with an opportunity to put its case forward excusing its conduct at law and must have a hearing of all its arguments including an argument based on issue estoppel. I accordingly refused to exercise discretion to bring an early end to this complaint.